Kumarpal Hastimal Jain vs Priti Kumarpal Jain

Dr. Shalini Phansalkar Joshi, J.—The original respondent has preferred this appeal, challenging the judgment and order dated 3.4.2014 of the Family Court at Bandra, in M.J. Petition No. C-58/2012. By the impugned judgment, the Family Court has allowed the wife''s petition for maintenance to herself and her daughter at the rate of Rs. 6,000/- and Rs. 2,000/- per month, respectively, under Sections 18 and 20 of Hindu Adoption and Maintenance Act, 1955.

Brief facts of the appeal can be stated as follows:-

The marriage of appellant and respondent had taken place on 13.12.2006 as per Hindu Vedic Rites at Bhuleshwar, Mumbai. After the marriage, both of them started residing together at Bhuleshwar. As per respondent wife, the appellant and his family members used to force her to do entire household work like cooking food, cleaning, washing clothes and utensils, mopping etc. They were also abusing her in filthy language and picking up quarrels with her on trifle counts. Her husband used to leave Mumbai and visit his native place at Bhubneshwar in Orissa for one or two months. During his absence, her in-laws used to abuse her. However, her husband never took cognizance of the same. He was careless, negligent and never bothered to maintain her and her daughter. He also used to abuse her in most filthy language and assault her mercilessly. He was coming home late in drunkard condition and harass, abuse and assault her. Hence she was constrained to reside separately alongwith her daughter. She has no source of income to maintain herself and her daughter. As against it, her husband is having jewellery and garment shop from which he earns Rs. 1,00,000/- per month. Hence she claimed maintenance at the rate of Rs. 25,000/- per month each for herself and her minor daughter Prapti.

The appellant, on service of notice of said proceeding, appeared in the Court but failed to contest the matter. As a result interim order of maintenance was passed against him, directing him to pay Rs. 6,000/- to wife and Rs. 2,000/- to the daughter per month. However, he failed to comply with the order. Hence his defence was struck of by the order dated 4.1.2014. As a result, the averments made by respondent wife in her petition and affidavit remained unchallenged. The appellant did not lead any evidence nor cross examined respondent and hence Family Court, confirmed the interim order of maintenance as final order and also awarded litigation costs of Rs. 10,000/- to the respondent.

This order of the trial Court is challenged in this appeal by appellant, by submitting that without there being any just and sufficient cause for respondent to reside separately from him, Family Court has awarded maintenance to her and the child. According to appellant, he is not having any source of income and hence he was even unable to contest the petition fled by respondent before the Family Court. His application seeking legal aid was dismissed by the Family Court without assigning any cause. The impugned order passed by the Family Court, therefore being ex-parte is liable to be quashed and set aside. Secondly, the appellant has urged that respondent wife herself is earning income. She is running cooking classes and institute where the students are taught how to prepare bakery products and cake functionaries etc. She sells it and do marketing of the same. She is having her own website "www:/cakesandcandies.com" in her name. Hence according to appellant on this ground also Family Court should have rejected the respondent''s claim for maintenance. Now the marriage is broken irretrievably and therefore, he is ready to give divorce, however, not ready to pay maintenance, as awarded by Family Court.

Learned counsel for respondent wife has supported the impugned order of the trial Court by pointing out the conduct of the appellant of total defence to the order of the Family Court and not showing his bona fides to comply therewith. It is urged that the appellant was never interested in continuing the marital bond and on one count or the other he wanted to avoid his responsibility towards respondent and his minor daughter. Therefore, he is claiming various excuses and grounds to avoid payment of maintenance. He is having sufficient financial means to pay the maintenance. He cannot shirk from his responsibility of doing so and hence according to respondent, this appeal being just an attempt to avoid the payment of maintenance, is liable to be dismissed.

On rival submissions of both parties, we are also of considered opinion that there is absolutely no substance in this appeal and it is liable to be dismissed. Once the appellant admits his relationship with respondent wife and minor daughter and once it is proved that he is an able bodied person, it follows that he is liable to maintain the respondent wife and his daughter. He was given sufficient opportunity by the Family Court to disprove the case of respondent that she is having just and sufficient cause to reside separately from him. Her evidence to the effect that, during her stay with appellant she was subjected to harassment and ill-treatment, had remained unchallenged on record. Further her evidence that the appellant is having jewellery and garment shop from which he earns income of Rs. 1,00,000/- per month is also not challenged by the appellant by subjecting respondent to cross-examination. The appellant himself has not led any evidence to prove his case that he is working as employee in the said shop and not having sufficient income. He also not led any evidence to prove that the respondent is having her own income which is sufficient to maintain herself and their daughter.

The contention of appellant is that he was not given an opportunity to do so as his application for providing Legal Aid came to be rejected by the Family Court. The impugned judgment and order of the Family Court reveals that the reasons for striking of defence of appellant was that he failed to comply with the order of interim maintenance. The appellant has not deposited a single pai towards arrears of maintenance. In such situation, in our opinion, trial Court was justified in striking of his defence especially when he has shown total defiance to the Court''s order by his conduct of not depositing any amount which may be in his means to do so. At least to show his bona fides to comply with the order and also to show his concern for the welfare of his daughter Prapti and wife, he should have attempted to comply with the order in the face of his specific averment made in the petition by respondent that he was earning the income of Rs. 1,00,000/- per month from his jewellery and garment shop. Accepting his contention that he was working as Salesman in jewellery shop and earning Rs. 4,000/- per month, even then his liability to pay maintenance to the wife and child remains. He should have paid or deposited some amount in the Court towards their maintenance if not Rs. 6,000/- and Rs. 2,000/- per month as awarded by the trial Court towards interim maintenance.

It is pertinent to note that in this appeal also, appellant has also not shown his bona fides by depositing any amount in this Court. In our view, therefore, having regard to the requirement of the respondent wife and the daughter, the financial capacity of the appellant to pay the said amount, as evidence of respondent to that effect has remained unchallenged on record, the impugned order of the trial Court cannot be and need not be interfered with. The appeal, therefore, holds no merit and stands dismissed.